U.S. v. Black

• Decision Date: 05 June 2007
• Docket Number: No. 5:07-CR-42-D.,5:07-CR-42-D.
• Citation: 490 F.Supp.2d 630
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America v. James Boyce BLACK, Defendant.

490 F.Supp.2d 630

UNITED STATES of America v. James Boyce BLACK, Defendant.

No. 5:07-CR-42-D.

United States District Court, E.D. North Carolina. Western Division.

June 5, 2007.

COPYRIGHT MATERIAL OMITTED

Dennis M. Duffy, John S. Bruce, U.S. Dept. of Justice, Raleigh, NC, for United States of America.

Kenneth D. Bell, Hunton & Williams, Charlotte, NC, for Defendant.

ORDER

DEVER, District Judge.

On February 15, 2007, defendant James Boyce Black (a/k/a "Jim Black") ("Black" or "defendant") pleaded guilty in this court to violating 18 U.S.C. § 666(a)(1)(B). Between 2000 and 2005, Black was the Speaker of the North Carolina House of Representatives. According to the government's factual basis presented at Black's arraignment, Black's criminal conduct took place between 2000 and December 2005 and included accepting approximately $25,000 in cash and a $4,000 check from chiropractors, intending to be rewarded in connection with the business of state government. At defendant's February 15, 2007, arraignment, the court notified the parties that defendant's sentencing would take place during the May 14, 2007, term of court.

On May 3, 2007, defendant filed a motion to recuse pursuant to 28 U.S.C. §§ 455(a), 455(b)(1), and 455(b)(2). Black does not seek recusal under 28 U.S.C. § 144, and his motion does not allege that I am personally biased or prejudiced against him. See Def.'s Mot. to Recuse 3 n. 1.¹ Rather, the motion alleges that I should recuse myself because I may have "personal knowledge of disputed evidentiary facts concerning the proceeding" (28 U.S.C. § 455(b)(1)), and because I allegedly, while "in private practice ... served as a lawyer in the matter in controversy, or a lawyer with whom [I] previously practiced law served during such association as a lawyer concerning the matter. ..." 28 U.S.C. § 455(b)(2). Alternatively, the motion seeks my recusal under the "catchall" recusal provision in section 455(a) because my "impartiality might reasonably be questioned." Id. § 455(a).

Essentially, the motion to recuse is based on a redistricting lawsuit that took place primarily in North Carolina state court between November 2001 and July 2003. At the time of that redistricting lawsuit, I was in private practice in Raleigh. In the litigation, Thomas Farr and I were lawyers who represented five Republican voters ("plaintiffs"). The plaintiffs challenged the constitutionality under the North Carolina Constitution of a November 2001 redistricting statute for North Carolina House and Senate legislative districts. In the lawsuit, plaintiffs sought injunctive relief to prevent the State of North Carolina from using the November 2001 redistricting statute. Plaintiffs sued the following ten North Carolina officials in their official capacity: the Executive Director of the State Board of Elections, the five members of the State Board of Elections, the Speaker of the North Carolina House of Representatives, the President Pro Tempore of the North Carolina Senate, the Governor of North Carolina, and the Attorney General of North Carolina. See Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002) ("Stephenson I"). By definition, such official-capacity lawsuits seek relief only from the government (i.e., the State of North Carolina) and do not seek personal relief against any public official. In April 2002, the Supreme Court of North Carolina held that the November 2001 redistricting statute violated the North Carolina Constitution and enjoined its use. See id. In July 2003, the Supreme Court held that the May 2002 redistricting statute violated the North Carolina Constitution and affirmed the state trial court's May 2002 remedy. See Stephenson v. Bartlett, 357 N.C. 301, 582 S.E.2d 247 (2003) ("Stephenson II").

On February 9, 2004, I left private practice and was appointed a United States Magistrate Judge. I served in that capacity from February 9, 2004, until May 3, 2005. On May 3, 2005, I was appointed a United States District Judge. I have served in that position since May 3, 2005.

On May 11, 2007, the United States responded in opposition to the defendant's motion to recuse. On that same date, defendant filed a motion to supplement his motion to recuse.²

As explained in Part II of this order, the court denies defendant's motion to recuse under section 455(b)(1) and section 455(b)(2). I do not have "personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(b)(1). Also, while in private practice, I never "served as a lawyer in the matter in controversy," and neither did any lawyer with whom I previously practiced law. Id. § 455(b)(2). As explained in Part III of this order, the court denies defendant's motion to recuse under section 455(a). Nothing that this court has said or done creates an appearance of bias. Nevertheless, as explained in Part IV of this order and on the court's own motion, I do recuse in the public interest from further proceedings in Black's case. Accordingly, the Clerk of Court is ordered to reassign this case for all further proceedings to another district judge in the Eastern District who accepts criminal cases. The reassignment shall be done through the Clerk's standard, neutral, random assignment process.

I.

To put defendant's motion to recuse into context, the court describes the record at some length. Initially, the court discusses the August 2006 criminal action in this court concerning former North Carolina Representative Michael Decker ("Decker"). The court then discusses the February 2007 criminal actions in federal and state court concerning Black. As part of its analysis of Black's arguments concerning recusal, the court will discuss the Stephenson redistricting litigation, section 455(b)(1), section 455(b)(2), and section 455(a).

A.

On August 1, 2006, Decker appeared in this court and pleaded guilty, pursuant to a plea agreement, to conspiracy to commit extortion under color of official right, honest services mail fraud, and money laundering in violation of 18 U.S.C. § 371.

The criminal information to which Decker pleaded guilty on August 1, 2006, stated:

Beginning in or about mid-November of 2002 and continuing through in or about March of 2006, in the Eastern District of North Carolina and elsewhere, MICHAEL P. DECKER, SR. ("DECKER"), defendant herein, knowingly and unlawfully combined, conspired, agreed, and confederated with others, to commit offenses against the United States, specifically:

a. To affect commerce by extortion, that is, by the obtaining of property from another person, with the person's consent, under color of official right, in violation of Title 18, United States Code, Section 1951;

b. To knowingly use, and cause others to use, the mail for the delivery and receipt of matters and things for the purpose of executing a devised scheme and artifice to defraud the State of North Carolina and its citizens of the right to DECKER'S honest services as a member of the North Carolina House of Representatives, in violation of Title 18, United States Code, Sections 1341 and 1346; and

c. To conduct financial transactions involving the proceeds of specified unlawful activity, to wit, extortion and mail fraud, knowing that the property involved in said transactions represented the proceeds of some form of unlawful activity, and knowing that the transactions were designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of specified unlawful activity, in violation of Title 18, United States Code, Section 1956(a)(1)(B)(i).

Overt Acts

In furtherance of the conspiracy and to effect the objects thereof, DECKER and other conspirator(s) did, in the Eastern District of North Carolina and elsewhere, commit numerous overt acts, some of which are detailed below.

1. After the results of the general election of November, 2002, left the North Carolina House of Representatives with 61 Republican members and 59 Democratic members, DECKER solicited and agreed to accept $50,000 and other things of value in return for switching from the Republican Party to the Democratic Party and supporting a particular candidate for Speaker of the House.

2. On January 24, 2003, DECKER changed his party registration from Republican to Democrat and publicly announced the switch.

3. On January 24, 2003, four checks totaling $2500 and made payable to DECKER'S campaign were sent by private commercial carrier from Raleigh, NC, to another location in North Carolina.

4. Later in 2003, DECKER accepted an envelope containing about $38,000 in checks, including the ones described in Overt Act No. 3, and $12,000 in cash in return for switching parties and supporting a particular candidate for Speaker of the House.

5. After his reelection bid failed in the Republican primary of July, 2004, DECKER agreed to keep his campaign account open in case there was a need to run some money through it. On or about February 10, 2005, DECKER received a $4000 check payable to his campaign, deposited it in his campaign account, promptly closed out the account, and converted the money to his personal use.

United States v. Decker, No. 5:06-CR-197-1-D, Crim. Inf. (E.D.N.C. Aug. 1, 2006).

At Decker's arraignment on August 1, 2006, Assistant United States Attorney John Bruce provided the following proffer as to a factual basis for Decker's plea:

If this case proceeded to trial, the government would show by competent evidence the following: Mr. Decker was elected ten times as a Republican to the North Carolina House of Representatives for Forsyth County. The last time being 2002.

During this time in the House, he had never been a prolific fundraiser. After the results of the 2002 election were fully counted, the Republicans had gained a 61/59 advantage. There followed a period of uncertainty as to who would be the Speaker for the 2003/2004 session of the North Carolina General Assembly.

The Speaker of the House wields...